Citation Nr: 0940934
Decision Date: 10/27/09 Archive Date: 11/04/09
DOCKET NO. 07-39 399 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
L. J. N. Driever, Counsel
INTRODUCTION
The Veteran had active service from June 1953 to May 1955.
This claim comes before the Board of Veterans' Appeals
(Board) on appeal of a February 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina.
In April 2009, the Board granted the Veteran's motion to
advance this case on its docket pursuant to 38 C.F.R.
§ 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002).
In May 2009, the Board remanded this claim to the RO via the
Appeals Management Center (AMC) in Washington, D.C.
In a written statement and Written Brief Presentation dated
January 2007 and April 2009, respectively, the Veteran and
his representative raise a claim of entitlement to service
connection for tinnitus. The Board refers this matter to the
RO for appropriate action.
FINDING OF FACT
Current bilateral hearing loss is not related to the
Veteran's active service, including any noise exposure or
acoustic trauma, and did not manifest to a compensable degree
within a year of his discharge therefrom.
CONCLUSION OF LAW
Bilateral hearing loss was not incurred in or aggravated by
service and may not be presumed to have been so incurred. 38
U.S.C.A. §§ 1101, 1110, 1112(a), 1113, 1131, 1137 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. VA's Duties to Notify and Assist
Upon receipt and prior to consideration of most applications
for VA benefits, VA is tasked with satisfying certain
procedural requirements outlined in the Veterans Claims
Assistance Act of 2000 (VCAA) and its implementing
regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2009).
The VCAA and its implementing regulations provide that VA is
to notify a claimant and his representative, if any, of the
information and medical or lay evidence not previously
provided to the Secretary that is necessary to substantiate a
claim. As part of the notice, VA is to specifically inform
the claimant and his representative, if any, of which portion
of the evidence the claimant is to provide and which portion
of the evidence VA will attempt to obtain on the claimant's
behalf. VA is also to assist a claimant in obtaining
evidence necessary to substantiate a claim, but such
assistance is not required if there is no reasonable
possibility that it would aid in substantiating the claim.
38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R.
§ 3.159(b), (c) (2009).
The United States Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure compliance with the
provisions of the VCAA, when applicable. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002). The VCAA is applicable in
this case and, as explained below, VA satisfied the
requirements thereof by providing the Veteran adequate notice
and assistance with regard to his claim. The Board's
decision to proceed in adjudicating it does not, therefore,
prejudice the Veteran in the disposition thereof. Bernard v.
Brown, 4 Vet. App. 384, 392-94 (1993).
A. Duty to Notify
Notice under the VCAA must be provided a claimant prior to an
initial unfavorable decision by the agency of original
jurisdiction. Pelegrini v. Principi (Pelegrini II),
18 Vet. App. 112, 119-20 (2004).
The Court has held that the aforementioned notice
requirements apply to all five elements of a service
connection claim, including: (1) veteran status;
(2) existence of disability; (3) a connection between service
and disability;
(4) degree of disability; and (5) effective date of
disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473,
484 (2006).
In this case, the RO provided the Veteran VCAA notice on his
claim by letter dated February 2006, before initially
deciding that claim in a rating decision dated February 2007.
The timing of such notice reflects compliance with the
requirements of the law as found by the Court in Pelegrini
II.
The content of the aforementioned notice letter reflects
compliance with the requirements of the law as found by the
Court in Pelegrini II.
In the notice letters, the RO acknowledged the Veteran's
claim, notified him of the evidence needed to substantiate
that claim, identified the type of evidence that would best
do so, informed him of VA's duty to assist and indicated that
it was developing his claim pursuant to that duty.
The Veteran has substantiated his status as a veteran. He
has not received notice on the disability ratings and
effective date elements of the claim. Inasmuch as the claim
for service connection is being denied, no effective date or
rating is being assigned, and the absence of notice on those
elements does not prevent him from meaningful participation
in the adjudication of the claim. Hence, he is not
prejudiced.
The RO identified the evidence it had received in support of
the Veteran's claim and the evidence it was responsible for
securing. The RO noted that it would make reasonable efforts
to assist the Veteran in obtaining all outstanding evidence
provided he identified the source(s) thereof. The RO also
noted that, ultimately, it was the Veteran's responsibility
to ensure VA's receipt of all pertinent evidence. The RO
advised the Veteran to sign the enclosed forms authorizing
the release of his treatment records if he wished VA to
obtain such records on his behalf. It thereby provided
notice of the evidence he was responsible for obtaining.
The RO also informed the Veteran that it had attempted to
obtain his service treatment and personnel records, but had
learned that there were none on file. The records were
likely destroyed in a fire that occurred at the Records
Management Center, a military records storage facility. See
Dixon v. Derwinski, 3 Vet. App. 261 (1992) (holding that,
where a veteran's service medical records have been destroyed
or lost, the Board is under a duty to advise the claimant to
obtain other forms of evidence, such as lay testimony, to
support his claim). The RO asked the Veteran to assist in
reconstructing his service data by submitting a completed
copy of the enclosed NA Form 13055 (Request for Information
Needed to Reconstruct Medical Data), and/or additional
information regarding his service.
In notifying the Veteran of the unavailability of his service
treatment records, the RO did not advise him to submit
alternative types of evidence to support his claim, including
statements from service medical personnel and/or buddies.
However, a remand is not necessary to so inform the Veteran.
Rather, during the course of this appeal, without prompting,
the Veteran identified two laypersons willing to comment on
the Veteran's alleged in-service noise exposure, acoustic
trauma and/or hearing loss. The RO requested and obtained
written statements from these individuals.
B. Duty to Assist
The RO made reasonable efforts to identify and obtain
relevant records in support of the Veteran's claim. 38
U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the
RO endeavored to secure and associate with the claims file
all evidence the Veteran identified as being pertinent to his
claim, including service and post-service treatment records.
The RO also endeavored to reconstruct the Veteran's service
file. After the Veteran completed the NA Form 13055 and
identified the dates when he allegedly received treatment for
the claimed disability at issue in this appeal and the
location of the facilities where he received such treatment,
the RO relayed this information to the National Personnel
Records Center (NPRC). NPRC later responded negatively with
regard to locating any records that mention the veteran.
Destruction of service medical records creates a heightened
duty on the part of VA to consider the applicability of the
benefit of the doubt, to assist the claimant in developing
the claim, and to explain its decision. Cromer v. Nicholson,
19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51
(1996). Where service medical records are missing, VA also
has a duty to search alternate sources of service records.
Washington v. Nicholson, 19 Vet. App. 362 (2005).
In this case, as previously indicated, after realizing that
the Veteran's service treatment records were unavailable, the
RO searched alternate sources of records by requesting
information from the Veteran and the service department. The
Veteran has furnished lay statements in support of the claim.
Since then, the Veteran has not identified any other type of
evidence for VA to assist the Veteran in securing. In fact,
in a form dated September 2009, he indicated that he had no
other information or evidence to submit. By relaying the
aforementioned information to NPRC and obtaining supportive
lay statements discussing alleged in-service events, VA
satisfied its heightened duty to assist the Veteran in the
development of his claim.
The RO also afforded the Veteran a VA examination, during
which an examiner discussed the presence and etiology of the
Veteran's hearing loss. The Veteran does not now assert that
the report of this examination is inadequate to decide his
claim.
II. Analysis of Claim
Service connection will be granted for disability resulting
from injury or disease incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303
(2009).
In cases involving service connection for hearing loss,
impaired hearing will be considered to be a disease when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2009).
Manifestations of a chronic disease in service and at any
time therafter, however remote, are to be service connected,
unless clearly attributable to intercurrent causes. For the
showing of chronic disease in service there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or diagnosis including the word "chronic." When the
fact of chronicity in service is not adequately supported,
then a showing of continuity after discharge is required to
support the claim. 38 C.F.R. § 3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection may be presumed for an organic disease of
the nervous system, which includes sensorineural hearing
loss, if it is shown that a veteran served continuously for
90 days or more during a period of war or during peacetime
after December 31, 1946, and such disease manifested to a
degree of 10 percent within one year from the date of
discharge with no evidence of record establishing otherwise.
38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38
C.F.R.
§§ 3.307, 3.309(a) (2009).
In order to prevail on the issue of service connection on the
merits, there must be medical evidence of a current
disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992); medical or, in certain circumstances, lay evidence of
in-service incurrence or aggravation of a disease or injury;
and medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.
See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78
F.3d 604 (Fed. Cir. 1996).
In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires
that VA give "due consideration" to "all pertinent medical
and lay evidence" in evaluating a claim for disability or
death benefits. Davidson v. Shinseki, No. 2009-7075 (Fed.
Cir. Sept. 14, 2009).
The Federal Circuit has held that "[l]ay evidence can be
competent and sufficient to establish a diagnosis of a
condition when (1) a layperson is competent to identify the
medical condition, (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by
a medical professional." Jandreau v. Nicholson, 492 F.3d
1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson,
451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot
determine that lay evidence lacks credibility merely because
it is unaccompanied by contemporaneous medical evidence").
Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The Veteran has reported that in 1953, while training at Fort
Pickett, he began having ear problems secondary to being in
close proximity to exploding land mines. He alleges that his
ear problems continued while serving in Germany as an
ambulance driver, which exposed him to a significant amount
of noise from gunfire.
The only available service medical record consists of the
report of examination for separation from service, which was
conducted in May 1955. This shows that his ears were found
to be normal. On whispered voice testing, the Veteran's
hearing was 15/15 in each ear.
The certificate of discharge from service confirms that the
Veteran served with an ambulance unit.
The Veteran has submitted statements dated in February 2007,
from his spouse, S.H., and friend, D.P., in support of his
claim. According to these statements, the Veteran had
perfect hearing and never complained of hearing loss prior to
entering service, had noticeably different hearing ability
upon return from service, and had experienced a subsequent
decline in his ability to hear, requiring him to talk louder
and louder and repeat himself.
Post-service medical documents, including records of VA and
private treatment rendered since 1998 and a report of a VA
audiological examination conducted in July 2009, confirm that
the Veteran currently has VA hearing loss by VA standards.
For instance, during the VA audiological examination
conducted in July 2009, an audiometer revealed the following
pure tone thresholds, in decibels:
HERTZ
1000
2000
3000
4000
LEFT
55
65
65
70
RIGHT
70
85
80
85
An examiner diagnosed mild to severe high frequency
sensorineural hearing loss bilaterally. The question is thus
whether this hearing loss is related to the Veteran's active
service, including the alleged in-service noise exposure
and/or acoustic trauma.
As previously indicated, most service records are unavailable
in this case, nonetheless the Veteran is competent to report
in-service noise exposure and that exposure is consistent
with his service as an ambulance driver. He is also
competent to report that he experienced hearing loss in
service. The separation examination, however, shows no
hearing loss, and there is no contemporaneous record of
hearing loss in the decades after service.
Decades following discharge, beginning in 1994, the Veteran
sought treatment for hearing loss, which medical
professionals confirmed. This treatment took place after
decades of post-service noise exposure as a construction
worker.
The records show that his hearing loss was initially
characterized as sensorineural on the left and mixed on the
right, but later characterized it as sensorineural
bilaterally. Private records of treatment for hearing loss
dated from July 1998 to July 2000 contain no reports of
hearing loss dating to service or of in-service injury or
symptoms.
VA treatment records dated from December 2005 to February
2007 also make no mention of in-service hearing loss or a
continuity of symptomatology since service. In December
2005, the Veteran reported a gradual decrease in hearing over
"many years." At that time he reported in-service noise
exposure.
One medical professional, the VA examiner who evaluated the
Veteran in July 2009, addressed the etiology of the Veteran's
bilateral hearing loss.
In July 2009, based on review of the claims file and
consideration of the Veteran's reported history of noise
exposure (in service as an ambulance driver in support of an
artillery unit and post service as a worker in the
construction field), a reported in-service artillery blast
near his ambulance, and an audiogram, he opined that it would
be speculative to relate the Veteran's hearing loss to his
active service. He based this opinion on the following: (1)
The current degree and configuration of the Veteran's hearing
loss is not particularly consistent with the type and degree
of hearing loss that would be develop from noise exposure,
alone; and (2) any noise exposure the Veteran experienced
during service as an ambulance driver in support of an
artillery battery not involved in combat was limited.
There is no medical opinion refuting that of the VA examiner.
The examiner's opinion was supported by a rationale, a review
of the record and consideration of the history reported by
the Veteran. The courts have held that where an examiner
says an opinion cannot be rendered without resort to
speculation, the examiner has provided "non-evidence." See
Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). While the
examiner in this case used the word "speculation," the
examiner did not say that an opinion could not be rendered
without resort to speculation. Instead he said that a
favorable opinion could not be provided without resort to
speculation. Implicitly, a negative opinion could be
provided without resort to speculation. Indeed, the examiner
provided a rationale that was against the claim.
The Board must proceed to weigh the examiner's opinion with
the other evidence of record. The evidence in support of a
link between the current hearing loss and service consists of
the Veteran's competent reports of an in-service injury and
continuity of symptomatology and the lay statements he has
submitted in support of his claim.
These reports are contradicted; however, by the
contemporaneous record showing no hearing loss at the time of
the Veteran's examination for separation from service, and
the fact that the Veteran did not report in-service hearing
loss or a continuity during the initial treatment in the
1990's or during subsequent private or VA treatment. Given
these contradictions and the VA examiner's opinion, the Board
concludes that the weight of the evidence is against finding
a link between the current hearing loss and service. See
Buchanan v. Nicholson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006)
(holding that the Board may weigh lay evidence against other
evidence of record and make credibility determinations).
A preponderance of the evidence is thus against the claim.
The benefit-of-the-doubt rule is thus not for application and
the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002).
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for bilateral hearing loss is denied.
______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs